2. After appeal and upon remand whether appeal was F.C (a) under Ch. 56 or under Article 44.47, CCP.

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1 AGE LIMITS IN THE JUVENILE JUSTICE SYSTEM I. IN THE JUVENILE SYSTEM AGE IS JURISDICTIONAL A. Age at time of offense; child ; F.C (2)(A) preliminary investigation upon referral F.C (a)(1) B. Age for probation in home or removed from home F.C (2)(B) F.C (a)(1) C. Age for occurrence of probation violation F.C (a)(1) D. Challenge to initial juvenile court jurisdiction because of F.C age of child 1. At adjudication/discretionary transfer hearing and BEFORE a finding of True or a decision about transfer. (TRCP 85, Plea to the Jurisdiction. Under Civil Rules in personam jurisdiction can be by consent.) Submitted by Darlene Whitten Page 1 of 12

2 2. After appeal and upon remand whether appeal was F.C (a) under Ch. 56 or under Article 44.47, CCP. + II. TEXAS YOUTH COMMISSION (TYC) A. Age at time of offense for commitment to TYC whether determinate or indeterminate sentence. B. Age eligible for commitment to TYC whether determinate F.C (e) or indeterminate sentence. C. Age eligible for TYC involvement, whether residential or parole H.R.C (b) H.R.C (e) III. DETERMINATE SENTENCE JUVENILES A. Commitment to TYC (see TYC, generally, above) F.C F.C (d)(3) F.C (e) H.R.C (b) B. Continuing juvenile court jurisdiction to sentence F.C a person to Texas Dept. of Corrections without regard to the age of the person. + C. For determinate sentence probationer with actual F.C (q) sentence of not more than 10 years with probation F.C not more than 10 years, then juvenile court: 1. BEFORE 18 th birthday may discharge child F.C from determinate sentence probation. 2. or UPON 18th birthday shall discharge probationer F.C unless a hearing on state s motion before 18th birthday transferred probationer to adult district court supervision. Submitted by Darlene Whitten Page 2 of 12

3 3. Determinate sentence probationer under district F.C (h) court supervision shall pay balance of any restitution; parents released from order to pay at age D. For institutionalized determinate sentence inmate: 1. TYC may request hearing in juvenile court for F.C approval to transfer determinate sentence inmate H.R.C to TDCJ after 16 th birthday and before 21 st birthday. 2. TYC may request hearing in juvenile court for F.C release before completion of minimum length of stay H.R.C (f) at any time. 3. For determinate sentence juvenile released on F.C parole, TYC transfers parolee to pardons and H.R.C (f) parole division of TDCJ at 19th birthday to complete determinate sentence. 4. If determinate sentence juvenile is still F.C institutionalized, TYC automatically transfers H.R.C (g) person to TDCJ on 21st birthday for parole. 5. If capital murder determinate sentence inmate H.R.C (d) has not been released or served minimum length of stay, TYC shall automatically transfer person to TDCJ on 21st birthday. For new offenses after , transfer will be for parole. IV. CERTIFICATION TO STAND TRIAL AS ADULT/TRANSFER TO CRIMINAL DISTRICT COURT A. Primary option for juvenile court waiver of F.C (a) jurisdiction if age at time of offense was: F.C F.C Submitted by Darlene Whitten Page 3 of 12

4 1. For a capital felony, aggravated controlled substance felony, or felony of 1st degree, age 14 years to 17 th birthday 2. For a 2nd or 3rd degree felony or state jail felony, age 15 years to 17th birthday. B. Secondary option for juvenile court waiver of person F.C (j) who is now 18 years or older, the state proves due diligence or impracticable to proceed earlier, and at the time of the offense the person was: 1. Between 10 and 17 years for a capital felony or any offense under P.C Between 14 and 17 years for an aggravated controlled substance felony or 1st degree felony (except P.C ) 3. Between 15 and 17 years for a 2 nd or 3 rd degree felony or state jail felony V. CHAPTER 55, MENTAL HEALTH A. Age at time of offense B. Court order for juvenile mental health services F.C automatically expires 120 days after 18 th birthday C. Continuation of juvenile proceedings if child F.C discharged from mental health facility before age 18 F.C D. Automatic transfer to criminal court of pending F.C juvenile court proceedings for F.C offenses (violent/habitual offenders) if person under inpatient/ residential care at age 18 years. Submitted by Darlene Whitten Page 4 of 12

5 AGE LIMITS IN THE JUVENILE JUSTICE SYSTEM Juvenile Justice Code Cite Topic Age F.C (2)(A) child for delinquent conduct 10 years up to 17th child in need of supervision birthday F.C (2)(B) child for probation & probation violations up to 18 th birthday F.C (a) trial court jurisdiction after appeal and remand without regard to age F.C (b) person may be in jail or on bond after appeal 18 years + F.C trial court jurisdiction for transfer to TDCJ or without regard to age for release from TYC for subjects of determinate sentence [see F.C (h)] [see F.C (d), (e), (l) [see H.R.C (5)] F.C to present: trial court jurisdiction of without regard to age child or person for offenses by child filed before age 18 years and due diligence. (R.E.M. 569 SW2nd until Juvenile jurisdiction, timely invoked, continued until final disposition.) ( until , juvenile court did not have jurisdiction to adjudicate an 18-year old. N.J.A. F.C Objection to juvenile court jurisdiction because of beyond age age must be before adjudication or discretionary jurisdiction transfer (see CCP art ) F.C child as trial witness and possible co-respondent 10 years up to 17 years (see CCP art ) F.C Preliminary investigation of youth to determine any age status as child upon referral to juvenile system. F.C Trial court jurisdiction to transfer child to 14 years up to (a)(2)(a) adult district court for unadjudicated felony 18 th birthday (capital felony, aggravated controlled substance felony, 1 st degree felony) [but see F.C (j) and ] F.C Trial court jurisdiction to transfer child to adult 15 years up to (a)(2)(b) district court for unadjudicated state jail or 2 nd or to 18 th birthday 3 rd degree felony. [but see F.C (j) and F.C ] Submitted by Darlene Whitten Page 5 of 12

6 F.C (j) Trial court jurisdiction AFTER finding state used 18 years or older due diligence or other good cause to transfer a person to district court who was a child at the time of conduct: - 10 years up to 17 years for capital felony or P.C years up to 17 years for aggravated controlled substance or 1st degree felony - 15 years up to 17 years for 2nd, 3rd, or state jail felony F.C (o)-(r) Remanded person may be held in county jail 18 years + pending resolution of remanded case. F.C child for hearsay, outcry statement as child 12 years or younger abuse victim F.C Disposition (see child F.C ) F.C (e) TYC commitment may be 17 years + F.C (l) a non-t.y.c. probation ends child s 18 th birthday F.C (q) Trial court jurisdictional deadline to discharge up to 18 th birthday determinate sentence probationer from probation or to transfer determinate sentence probationer to adult district court. Automatic discharge if no court action. F.C (b) parent/child ordered to pay restitution (can be up to 18 th birthday until completes high school) F.C (h) probationer transferred to district court ordered 18 years + to pay restitution F.C (a)(1) Trial court jurisdiction to modify disposition, up to 18 th birthday except commitment to T.Y.C. (see F.C for motions to modify filed before 18 years.) F.C (b) Dispositions end (except commitment to TYC) 18 th birthday F.C (a), Trial court jurisdiction to transfer determinate up to 18 th birthday (b), (c) sentence probationer to adult system district court or discharge from probation. F.C Presumption of closed courtroom. under 14 years F.C Release or transfer of TYC resident to TDCJ 16 years to 21 years for determinate sentence or habitual offender. Submitted by Darlene Whitten Page 6 of 12

7 F.C (l) An accused held for transfer/certification may 17 years + be housed in an adult facility without bond. F.C court order for mental health services 120 th day after 18 th automatically expires birthday F.C continuation of court proceedings after up to 18 th birthday pre-18th birthday discharge from mental health proceeding F.C transfer to criminal court of pending F.C th birthday case for inpatient juvenile F.C Prosecuting attorney may file motion for discharge/furlough restoration for child found unfit to proceed before 18 years and then discharged/furloughed from mental health care. [See F.C and F.C ] F.C transfer to criminal court of pending 18 th birthday F.C case for inpatient juvenile F.C (a) mandatory sealing for misdemeanor and CINS whatever upon finding 2 years elapsed since final discharge, no convictions or pending cases F.C (c) discretionary sealing for felony if not 21 years + transferred, not used as evidence in criminal sentencing, no adult felony conviction F.C (l) discretionary destruction of sealed records of 16 th birthday of status/class C plus 5 years F.C physical files may be destroyed for C.I.N.S. 18 years + (d)(1) referral or non-offense F.C physical files may be destroyed for misdemeanor 21 years + (d)(2) or unadjudicated felony referral F.C physical files may be destroyed for felony 31 years + (d)(3) F.C automatic restricted access exemptions for sex offenders/criminal combination/gangs F.C DPS certifies that juvenile justice information 21 years + records are subject to automatic restriction of access for non-determinate sentence or nontransfer cases and no adult criminal record (access denied to employers, educational institutions and others except criminal justice agencies) Submitted by Darlene Whitten Page 7 of 12

8 F.C (c) Juvenile court retains jurisdiction to enter contempt 18 years 6 months of court against a parent if the motion is filed by age 18 ½. F.C TDPRS may provide services to at risk youngsters 7 years and under 17 years CROSS REFERENCES Code of Criminal Procedure C.C.P. art Use or lose plea to jurisdiction of criminal court before jeopardy because of age at the time of the offense. C.C.P. art Appeal of transfer/certification with appeal without regard to age of conviction. C.C.P. art ff Adjudicated child registers as sex offender 10 years to 17 th unless otherwise ordered by the juvenile court, birthday for offense continuing for 10 years after exit from juvenile court disposition. C.C.P. art (m) Sex offender registration hearing on motion to without regard to age determine registration requirements Education Code E.C (d) JP/municipal court can transfer truancy to 10 years until 17 th juvenile court. birthday Government Code G.C (d) adult parole supervision for transfers from TYC 21 years + G.C (e) adult penalty for violation of adult parole for one 21 years + serving balance of determinate sentence but not to exceed original juvenile sentence Human Resources Code H.R.C (b) maximum age of TYC commitment H.R.C (a) TYC determinate sentence inmate may be transferred to prison by juvenile court until 21 years 16 years to 21 years H.R.C TYC may request early release for 10 to 21 years determinate sentence inmate H.R.C (d) TYC determinate sentence inmate for capital and (e) offense administratively paroled 21 years Submitted by Darlene Whitten Page 8 of 12

9 H.R.C (f) TYC transfers supervision of determinate 19 years sentence parole to TDCJ pardons and parole H.R.C (g) determinate sentence transferred from TYC to adult parole, except capital murder age 21 years Penal Code P.C (a) a child can be prosecuted/convicted for without regard to age perjury, aggravated perjury, most Transportation Code offenses, and most. Class C misdemeanors P.C For a witness younger than 18 years, subpoena younger than 18 years issues to person with custody/care/control. Submitted by Darlene Whitten Page 9 of 12

10 CRIMINAL VIOLATIONS, DELINQUENT CONDUCT AND CINS The categorization of a child s actions as criminal or as delinquent conduct or as child in need of supervision determines which court has jurisdiction and also determines dispositional limits. If a court without jurisdiction enters an order, the order is void. I. CRIMINAL COURT JURISDICTION OF CHILD S CONDUCT. Youthful matters in criminal courts are not confidential. There are some specialized expunction procedures. Title 3, Juvenile Justice Code does not apply in criminal court. A. District Court; felonies - Those matters transferred from juvenile court; child certified to stand trial as adult. - Aggravated perjury. P.C , F.C (c) nothing prevents criminal proceedings AG Opinion No. DM-461. Jurisdiction concurrent with juvenile court. - If a determinate sentence probationer is transferred to criminal/district court supervision, the Juvenile Justice Code controls B. Statutory County Court; jailable misdemeanors - Appeals of Class C matters - Perjury. P.C , F.C (c) AG Opinion No. DM-461. Jurisdiction concurrent with juvenile court. C. Justice of the Peace/Municipal Courts - City ordinances, including traffic ordinances, curfews - Transportation Code violations that are traffic offenses are not delinquent conduct and not CINS. F.C (a) (1) and (b) (1) exclude traffic offenses from delinquent conduct or C.I.N.S.; P.C allows prosecution and conviction for traffic offenses ; Trans. C (g) assigns traffic offenses to criminal courts and excludes juvenile courts. Traffic offenses are not transferable to juvenile court. Includes: - Failure to stop and render aid without personal injury, but with property damage under $200. Trans. C Failure to stop and render aid without person injury, unattended vehicle; property damage under $200. Trans. C Reckless driving. Trans. C Penal Code violations with fine only penalty, Class C, including P.C , taunting police animal P.C , pointing laser light at specified workers P.C , open container - Alcoholic Beverage Code. Especially Chapter 106 purchase, attempt to purchase, consumption, possession. 1 st and 2 nd DUI for any detectable amount. DUI is not a lesser included of DWI. ABC Submitted by Darlene Whitten Page 10 of 12

11 - Education Code Failure to attend school. E.C K 18 years - Family Code Truancy cases transferred annually from juvenile court to lower courts. F.C The cases are filed in the justice of the peace or municipal courts as the court of origin. Even if destined to be transferred to juvenile court, the court of origin/filing is still the lower court. Traffic matters can not be transferred to juvenile court, nor do traffic matters count as a conviction for purposes of an optional or mandatory transfer to juvenile court. Traffic matters can only be appealed as in criminal cases. Transfer from a lower court to juvenile court is possible if: 1. Prior to rd violation became CINS. No criminal court or juvenile court involvement in 1st and 2 nd offenses to 1989 Lower court jurisdiction over 1 st and 2 nd offense. 3 rd offense could be transferred to juvenile court or kept in lower court to 1991 Public intoxication became CINS. Otherwise, reverted to prior to 1987; i.e. no court involvement in 1 st or 2 nd offense Lower court jurisdiction over 1 st and 2 nd offense. Mandatory transfer to juvenile court upon filing 3 rd offense (i.e. 2 prior convictions ). F.C (b) Optional transfer of even the first fine only offense, including failure to attend school but not including traffic matters or public intoxication. F.C (b)(2) Teen Court, CCP art , is deferred adjudication not conviction. 5. September 1, A lower court with a juvenile case manager is not obligated to transfer the 3 rd offense to juvenile court. F.C (d), CCP art II. JUVENILE COURT JURISDICTION Conduct cannot be both CINS and delinquent conduct. A. Child in Need of Supervision (CINS) Some conduct is within the jurisdiction of a juvenile court merely because of status as a child or because of the need for intervention/prevention. - 3rd fine only allegation (i.e. 2 prior convictions) (September 2001: unless lower court has juvenile case manager) - Truancy. F.C (b) (2) 1987 Unless child is married/divorced/widowed 1991 F.C Truancy can be transferred from juvenile court to J.P. annually for original filing with J.P Truancy can also be transferred to municipal court annually 3 rd offense (i.e. 2 prior convictions) must be referred to juvenile court 2001 Defense of married, divorced or widowed eliminated. N.B. The married/divorced/widowed defense never applied to Education Code , failure to attend school. Submitted by Darlene Whitten Page 11 of 12

12 - Running away from home. F.C (b) (3) unless child is married/divorced/widowed. Substantial length of time is flexible. - Huffing paint and glue and volatile chemicals. F.C (b) (4). Health and Safety Code This is CINS despite being jailable misdemeanor for adults. - Public Intoxication. F.C (b) (1) since Expulsion (Violation of Student Code of Conduct). F.C (b) (5). Must be for previously communicated, written standards of conduct. See also Education Code (c) for serious and persistent misbehavior in the school districts own Alternative Education Programs. - Violations of a child-at-risk court order. F.C (b) (6). Under F.C TDPRS can request a district court order for family members of any at risk young person. If a child violates the order, the violation is referred to juvenile court. B. Delinquent Conduct - Penal code violations that are jailable misdemeanors or felonies F.C (a). Since 1993 includes both Texas and Federal penal codes. Includes perjury. - Contempt of a J.P. or municipal court order. 1995, F.C (a) (3). The lower court must not find contempt but refer the conduct that would amount to contempt to the juvenile court. 1999, lower court has the option of referring the contempt to juvenile court or entering a finding of contempt assigning appropriate statutory consequence. - DUI driving under the influence of any amount of alcohol, 3rd offense. F.C (a) (5). ABC DWI F.C (a) (4). Driving, boating, flying, etc. while intoxicated. Until 1997, 1st and 2nd offenses were CINS. In 1997, even the 1st offense is delinquent conduct. N.B. September 1, 2001, evading arrest using a vehicle may have an increased penalty and there will be more drivers license restrictions for DWI offenders. - Transportation Code , , for failure to stop and render aid for personal injury or property damage of $200 or more. - Transportation Code drag racing can be Class B up to felony. - Transportation Code for driving while license invalid. - Transportation Code for duty on striking fixture or highway landscaping if damage is $ C. Probation Violation - Probation Violations after September 2001 are not delinquent conduct. F.C (a) (2) Violations of adjudication and modification orders do not count as a strike toward eligibility for TYC. Probation violations can result in commitment to TYC if the child was eligible for TYC at the original adjudication. Submitted by Darlene Whitten Page 12 of 12